Supreme Court New South Wales Medium Neutral Citation: Mohareb v Harbour Radio Pty Limited;; Mohareb v Fairfax Media Publications Pty Limited;; Mohareb v State of NSW [2019] NSWSC 270 Hearing dates: 8 March 2019 Decision date: 15 March 2019 Before: Hoeben CJ at CL Decision: Pursuant to s 146(1) of the Civil Procedure Act 2005 (NSW) I order that proceedings 2018/221230 – Nader Mohareb v State of New South Wales and the Northern Beaches Council be transferred to the District Court. Catchwords: PRACTICE AND PROCEDURE – defamation – transfer of proceedings to District Court – proper approach – relevant factors. Legislation Cited: Bankruptcy Act 1966 (Cth) – s 60(4) Civil Procedure Act 2005 (NSW) – ss 86, 146(1) Uniform Civil Procedure Rules – r 43.34 Vexatious Proceedings Act 2008 (NSW) Cases Cited: Bodenstein v Hope Street Urban Compassion [2014] NSWSC 174 Hoser v Hartcher [1999] NSWSC 1060 Mohareb v Harbour Radio Pty Ltd; Mohareb v Fairfax Media Publications Pty Ltd [2018] NSWSC 1992 Sporting Shooters Association of Australia (NSW) Inc v McGuire [2014] NSWSC 1370 West and Anor v Nationwide News Pty Ltd (t/as Cumberland Newspaper Group) [2003] NSWSC 767 Category: Procedural and other rulings Parties: 2017/25606 Nader Mohareb – Plaintiff Harbour Radio Pty Limited – 1st Defendant Ray Hadley – 2nd Defendant State of New South Wales – 3rd Defendant 2017/35614 Nader Mohareb – Plaintiff Fairfax Media Publications Pty Limited – 1st Defendant Louise Hall – 2nd Defendant The State of New South Wales – 3rd Defendant 2018/221230 Nader Mohareb – Plaintiff State of New South Wales – 1st Defendant Northern Beaches Council – 2nd Defendant Representation: Counsel: 2017/25606 Plaintiff – Self represented M Richardson – 1st and 2nd Defendants S Chrysanthou – 3rd Defendant 2017/35614 Plaintiff – Self represented M Richardson – 1st and 2nd Defendants S Chrysanthou – 3rd Defendant 2018/221230 Plaintiff – Self represented M Richardson – 1st Defendant J Guihot – 2nd Defendant Solicitors: 2017/25606 Plaintiff – Self represented Banki Haddock Fiora – 1st and 2nd Defendants Crown Solicitor for NSW – 3rd Defendant 2017/35614 Plaintiff – Self represented Banki Haddock Fiora – 1st and 2nd Defendants Crown Solicitor for NSW – 3rd Defendant 2018/221230 Plaintiff – Self represented Crown Solicitor for NSW – 1st Defendant Moray & Agnew – 2nd Defendant File Number(s): 2017/025606; 2017/35614; 2018/221230 JUDGMENT Nature of proceedings 1. The plaintiff has commenced the above three matters in the Supreme Court Defamation List. On 22 February 2019 the parties were asked to show cause why these matters should not be transferred to the District Court pursuant to s 146(1) of the Civil Procedure Act 2005 (NSW) (the Act). Argument on that issue took place on 8 March 2019. This judgment is in respect of that issue. 2. Subsection 146(1) of the Act relevantly provides: "(1) If the Supreme Court is satisfied, in relation to proceedings before it: (a) that the proceedings could properly have been commenced in the District Court or the Local Court, and (b) that any cross-claim in the proceedings could properly have been brought as a cross-claim in the District Court or the Local Court, the Supreme Court may order that the proceedings, including any such cross-claim, be transferred to the District Court or to the Local Court, as the case requires." 1. There was no issue that the court of its own motion could make such a transfer (s 86 of the Act). 2. The background to the three sets of proceedings can be briefly stated. I stress that this summary is not intended to fully set out the issues in each set of proceedings but to sufficiently identify them so as to provide an understanding of the content of each claim. 3. The plaintiff in each matter is an undischarged bankrupt who is representing himself. Matter 2017/25606 is the first of the proceedings in point of time. The first defendant is the owner of radio station 2GB, the second defendant is a radio journalist and the third defendant is joined in its representative capacity for the then State Attorney General, Ms Upton. The plaintiff's claim against all three defendants is in defamation. He not only claims compensatory damages but also aggravated and special damages. 4. The background to the claim is that Ms Upton was interviewed by the journalist on radio on two occasions in January and May 2016. The subject matter was vexatious litigants in general and one particular person who was said to be a vexatious litigant. Although the plaintiff was not named in the first interview, he was named in the second. The plaintiff alleges that in the interviews the radio journalist made assertions which imputed that he was a vexatious litigant, that he frequently commenced legal action without a proper basis, that he wasted valuable court resources, that he did not pay costs awarded against him and that he was abusive and threatening when dealing with people. He asserts that the Attorney General, in effect, adopted those imputations. 5. The defendants have raised the following defences: the statements made were not capable of conveying the imputations alleged, justification, contextual truth and honest opinion. 6. This matter has given rise to a number of contested interlocutory applications. They include applications to strike out the imputations alleged, to strike out the defences, to challenge interrogatories, to set aside a subpoena and to amend the statement of claim. The Court was, however, advised that the interlocutory skirmishing was almost complete and that the parties were ready to take a hearing date. The estimated length of the trial is three weeks. 7. By way of further background, on 27 May 2016 the Attorney General commenced proceedings to have the plaintiff declared a vexatious litigant. Those proceedings were dismissed by this Court (Mohareb v Harbour Radio Pty Ltd; Mohareb v Fairfax Media Publications Pty Ltd [2018] NSWSC 1992 Schmidt J). 8. Matter 2017/35614 is also a claim in defamation only and raises similar but not identical issues. The first defendant is the publisher of the Sydney Morning Herald. The second defendant is a journalist employed by the paper and the third defendant is joined in its representative capacity for the then Attorney General, Ms Upton. 9. The cause of action against the first and second defendants is alleged to have arisen from articles published by the paper on 26, 28 and 29 May 2016. The cause of action against the third defendant is alleged to have arisen as a result of an interview between the second defendant and Ms Upton on 20 May 2016. The plaintiff alleges that in those articles, he was described as a vexatious litigant, that he frequently brought legal proceedings without reasonable cause, that he wasted valuable court resources and that he was abusive and threatening when dealing with people. The plaintiff alleges that Ms Upton defamed him in that her interview provided the basis for the alleged defamatory articles published by the first and second defendants. 10. The defendants rely upon the following defences: justification, contextual truth, common law qualified privilege, statutory qualified privilege and honest opinion. There have been a number of contested interlocutory applications. Without being exhaustive, these have included arguments concerning the imputations alleged, whether a claim in defamation could be brought against the Attorney General, contested directions, an application to strike out the defences, contested interrogatories and discovery and a contested subpoena. The Court was told that these interlocutory arguments have now been largely completed and that the matter is ready to be given a hearing date. It was common ground that this matter should be heard at the same time as the Harbour Radio Pty Limited matter. 11. In proceedings 2018/221230 the first defendant is named as representing the NSW Police Force and in particular, Inspector Reimer and Sergeant Morgan. The Northern Beaches Council is sued as vicariously liable for the actions of certain named inspectors in its employ. 12. The background to the claim against the NSW Police Force is that Inspector Reimer and Sergeant Morgan were appointed to investigate problems between some residents of Scotland Island, a residential area in the Pittwater region, which is accessible only by boat. The plaintiff made complaints to Sergeant Morgan about threats against him by a Mr Kelso. A meeting took place between Sergeant Morgan and the plaintiff on 10 August 2017 at the Water Police station at Broken Bay. In the course of that meeting, the plaintiff alleges that Inspector Reimer said that he [the plaintiff] was paranoid and that this was said in the presence of Sergeant Morgan. The plaintiff also alleges that in a telephone conversation between Inspector Reimer and his mother, Inspector Reimer told her that he [the plaintiff] was suffering from mental/psychiatric problems. Subsequent to those conversations, the plaintiff says that he was assaulted by Mr Kelso. 13. The plaintiff has brought these proceedings against the NSW Police Force in defamation and in negligence for failing to do enough to protect him from Mr Kelso. 14. The background to the claim against the Northern Beaches Council is that it was said to have been negligent through its rangers in failing to protect from damage the plaintiff's car and his motor cycle which were left in a Council carpark. The plaintiff also alleges that the Council, through its rangers, failed to adequately protect him against the actions of Mr Kelso. 15. These proceedings are still at an early stage and an interlocutory argument currently before the Court relates to answers to interrogatories and whether parts of the statement of claim should be struck out. Those matters have yet to be decided. 16. In relation to the Harbour Radio proceedings and the Fairfax Media proceedings, the plaintiff submitted that the damages which he is likely to recover will be substantial and significantly greater than the jurisdictional limit of the District Court. The plaintiff also submitted that even if that were not so, the proceedings should remain in the Supreme Court because while the amount of damages likely to be awarded is a relevant consideration, it is not determinative. On that issue, the plaintiff relied upon the observations of McCallum J in Sporting Shooters Association of Australia (NSW) Inc v McGuire [2014] NSWSC 1370 at [21] (McGuire). 17. The plaintiff submitted that these claims involved complicated issues of fact and law which should more properly be decided in the Supreme Court. He submitted that the dictates of justice require that these proceedings remain in the Supreme Court. The plaintiff asserted as the basis for that submission the disparity in resources when his position is compared with that of the defendants and that transferring the matter to the District Court would give rise to further expense and delay. 18. Regrettably, the plaintiff also sought to support his position by making a number of scurrilous allegations imputing bias on the part of her Honour Judge Gibson who has already heard a number of the plaintiff's claims which were brought in the District Court. I have disregarded those submissions by the plaintiff in their entirety. 19. The first and second defendants submit that these proceedings should remain in the Supreme Court because the defence of truth which they have raised, requires in effect, that they establish that the plaintiff was at the time of publication a vexatious litigant as defined by the Vexatious Proceedings Act 2008 (NSW). They submit that the Supreme Court is the appropriate forum for that argument, given the familiarity of this Court with that legislation. 20. They also submit that the allegations made against her Honour Judge Gibson are such that her Honour would have no alternative but to disqualify herself from hearing any more of the plaintiff's matters. They submit that this would cause difficulties for the District Court in that Gibson DCJ is the specialist defamation judge for the District Court and is in charge of its defamation list. 21. The third defendant in these two matters noted that, unlike other proceedings in the Supreme Court, there is no costs penalty for bringing a claim in defamation even if the damages ultimately awarded are less than $500,000 (r 43.34 Uniform Civil Procedure Rules). The third defendant further noted that this was because an important purpose of a defamation award is vindication for damage done to reputation. On that issue, the third defendant relied upon the reasoning of Simpson J (as her Honour then was) in West and Anor v Nationwide News Pty Ltd (t/as Cumberland Newspaper Group) [2003] NSWSC 767 where her Honour explained why defamation was treated differently to other claims. 22. The third defendant submitted that the consideration of whether to transfer a matter to the District Court involved the exercise of a discretion, i.e. what makes a particular defamation matter appropriate for the Supreme Court and whether there is a proper reason why the court should exercise its discretion so as to allow a matter to remain in the Supreme Court. 23. The third defendant submitted that an important consideration was the stage which the proceedings in the Supreme Court had reached. It submitted that if a matter had been in the Supreme Court for some time, the interests of justice required that it should remain. The third defendant referred the Court to authority to that effect: Haddon v Foresight & Ors (unreported, Supreme Court, 10 August 2009) (Nicholas J) and McGuire. 24. The third defendant also relied upon the Supreme Court's familiarity with the provisions of the Vexatious Proceedings Act 2008 which would enable one of its judges to better deal with the defendants' evidence and submissions to the effect that the plaintiff was a vexatious litigant at the time of publication. Consideration Harbour Radio and Fairfax Media Publications proceedings 1. The authorities have identified a number of factors which are relevant to a removal application. These include: the status of the parties, the extent of the publication of the matters complained of, the amount of the damages that might be awarded, the seriousness of the imputations alleged and whether the proceedings involve matters of principle that warrant the attention of the Supreme Court. The time at which such an application is made, the objects of case management and the needs and interests of other litigants, not just those conducting the proceedings in question, have also been held to be relevant. 2. I have concluded that the above proceedings should remain in the Supreme Court. Although I am not persuaded that the damages likely to be recovered by the plaintiff in either set of proceedings are likely to exceed the jurisdictional limit of the District Court, I am mindful that both these matters have now been in the Supreme Court for a considerable time and have been the subject of a number of contested interlocutory applications and rulings by McCallum J. I am also mindful that subject to the plaintiff properly answering interrogatories which have been administered to him, both these matters are ready to be allocated a hearing date and can conveniently proceed together. I accept that it would involve needless, additional costs and delay to transfer either set of proceedings to the District Court. Consideration State of NSW and Northern Beaches Council proceedings 1. The claim against these defendants is in a different category from the Harbour Radio and Fairfax Media Publications matters. The damages likely to be recovered are minimal. The claims in negligence against both the NSW Police Force and Northern Beaches Council are problematic at best and do not disclose a cause of action at worst. The defamatory statements alleged against Inspector Reimer and Sergeant Morgan appear to have been published to one or two people only. There is no evidence of any republication. Even if the comments made by those police officers were found to be defamatory, an award of damages would be problematic. 2. The claim in negligence against the Council rangers is problematic and may not give rise to a cause of action. The claim for damage to the plaintiff's car and motor cycle would also appear to be misconceived, given that he is an undischarged bankrupt whose trustee has elected not to continue to prosecute his claims. The principle of proportionality also creates a problem for the plaintiff. 3. The situation created by these proceedings was succinctly summarised by Beech-Jones J in Bodenstein v Hope Street Urban Compassion [2014] NSWSC 174. There his Honour said: "7 … However, the making of an order under s 146 falls within the concept of "any other order of a procedural nature", as specified in s 58(1)(a)(iii) of the Civil Procedure Act. It follows that, in considering whether to make such an order, the Court must seek to act in accordance with the dictates of justice and, in particular, have regard to s 56 and s 57, as well as the criteria in s 58(2). 8 Of course, s 56(1) recites the objective of facilitating the just, quick and cheap resolution of proceedings. More radically, s 57 directs attention to the objects of case management, which extends to the needs and interests of other litigants and not just those conducting the proceedings in question, or even just those conducting defamation proceedings. 9 The combination of sections 56 and 57 is of particular significance in defamation proceedings. Absent a claim for economic loss, the instances of large awards in defamation proceedings in the period after the decision in Carson v John Fairfax & Sons Ltd [1993] HCA 31; 178 CLR 44, are very rare. This trend has been forced by the cap on damages now found in s 35 of the Defamation Act 2005 (NSW). 10 For a variety of reasons, defamation proceedings often consume a significant amount of time and costs on interlocutory applications. The final hearings are usually lengthy. The end result is that, as a class, defamation proceedings have a tendency to consume a disproportionate amount of costs and judicial resources, having regard to the amount in issue, when compared to other cases." 1. The consideration of judicial resources in an application such as this is of importance. Judicial resources in the Common Law Division are under considerable pressure. With the increasing length of criminal trials and the requirement to provide Judges for the Court of Criminal Appeal, Bails and Duty, the number of Judges available for civil matters in any one week rarely exceeds three or four. Even now civil matters of five days or more are being listed in 2020. 2. It follows, therefore, that matters of this kind which involve a modest claim at best but which have the potential to consume a significant amount of court time and costs, and which can be heard in the District Court without there being any jurisdictional difficulty, should be dealt with in that court rather than displacing other civil matters which of their nature must be heard in the Supreme Court. 3. The fact that her Honour Judge Gibson may decide to recuse herself does not prevent this matter being adequately dealt with in the District Court. The days when there was any truth in the perception that in some way the District Court lacks sufficient expertise and experience to conduct defamation trials is long gone (Hoser v Hartcher [1999] NSWSC 1060 at [12] per Levine J). 4. Finally, unlike the Harbour Radio and Fairfax Media Publications matters, it cannot be said that a transfer to the District Court would impose a greater delay on the hearing of this matter than would be the case if it remained in the Supreme Court. On the contrary, the current resources of the District Court are such that an earlier hearing date in the District Court for this matter is more likely. 5. It follows that pursuant to s 146(1) of the Act I order that proceedings 2018/221230 – Nader Mohareb v State of New South Wales and the Northern Beaches Council be transferred to the District Court. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 March 2019